Has your patent been repeatedly rejected? If so, you could consider filing an appeal and this might be your only reasonable option. It is probably the right time for an appeal if you have tried to compromise with the patent examiner and tried using easier options. The appeals are decided by the Patent Trial and Appeal Board of the United States Patent office.
How do you begin the process of an appeal? The first thing you must file is a Notice of Appeal. At the latest, this needs to be filed within six months of the final rejection with payment of the appropriate extension fees. This filing begins a two-month deadline to file an Appeal Brief. Since you are in control of the deadline for the Appeal Brief, you could hold off on filing the Notice of Appeal if there are additional arguments or pieces of evidence you want to introduce into the record if you wish.
After the Appeal Brief is filed, the Examiner will meet with the supervisor and another examiner to discuss the rejection, your appeal brief and whether they want to send the appeal to the Board. At this stage, they can either withdraw the rejection, which would end the appeal process, or move forward with the appeal. If they decide to move forward with the appeal, they would file an Examiner’s Answer. You would then be required to pay a forwarding fee to the United States Patent Office within two months of the date of the Examiner’s Answer in order to send the appeal case to the Board.
The applicant can then file a Reply Brief in response to the arguments in the Examiner’s Answer. This Reply Brief should not consist of the arguments that were already made in the Appeal Brief and is due two months from the date of the Examiner’s Answer.
You may also request an oral hearing but the attorneys’ fees vary widely and can be very expensive.
The Patent Trial and Appeal Board usually issues a decision about 30 months from when the start of the appeal begins. The possible outcomes could be a remand, new grounds of rejection, reversal or affirmation of the Examiner’s rejection. If the appeal is determined in the Examiner’s favor, you must file a request for continued examination within 63 days or the application will go abandoned.
